Category Archives: Standards of review

S.D.W.Va.: A tiny scrap of mj in a trash pull doesn’t support an inference of drug dealing from the house

“Detective Aldridge could not reasonably have believed that the three tiny scraps of marijuana in the trash—unable to cover even a corner of a Post-it note [actually a stem; photo included]—could support the idea of ongoing or recurrent activity in … Continue reading

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NC: State has burden of proof BRD on 4A harmless error

The state carries the burden of proving harmless error for a Fourth Amendment beyond a reasonable doubt. State v. Scott, 2021-NCSC-41, 2021 N.C. LEXIS 321 (Apr. 16, 2021). The evidence supports that the person consenting had apparent and actual authority … Continue reading

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AR: One can’t change 4A argument from trial court to appeal

Defendant’s oral motion to suppress was presented and denied. On appeal, defendant changed the specifics of the argument, and it’s not considered as presented. Saffel v. State, 2021 Ark. App. LEXIS 176 (Apr. 14, 2021). The officer’s stop of defendant’s … Continue reading

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OR: State didn’t develop its argument about RS at the hearing, and it’s found waived

The state’s justification for inquiries about travel plans isn’t reached on appeal because it wasn’t briefed or even developed below. Instead, the questions about it related only to initial reasonable suspicion. “We conclude that the record could have developed differently … Continue reading

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D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading

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CA8: Warrantless seizure of computer in fraud case was reasonable because of exigency

The warrantless seizure of defendant’s computer was justified by exigent circumstances that it contained evidence of fraud. United States v. Mays, 2021 U.S. App. LEXIS 9861 (8th Cir. Apr. 6, 2021). “Because we conclude that the officer’s initial question about … Continue reading

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CA3: There was PC on the totality of the SW affidavit despite its alleged “slapdash” format; courts don’t grade warrant requests except for totality

There is probable cause on the totality of the affidavit. Defendant challenges the lack of order and “slapdash” nature of the showing. Courts don’t grade warrant applications for style, just substance. United States v. Wilson, 2021 U.S. App. LEXIS 9619 … Continue reading

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CA3: Mid-trial suppression argument wasn’t timely

Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading

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D.N.M.: Business records SW was particular where limited to firearms offense

The business records search here was not overbroad as enabling a search of all records; just for violations of firearms offenses under 18 U.S.C. § 922(a)(1). It was particular enough. United States v. Warner, 2021 U.S. Dist. LEXIS 62302 (D. … Continue reading

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CA6: No interstate commerce nexus needed for a federal search and seizure

There is no interstate commerce predicate to a federal search and seizure. Defendant cites no authority and the court doesn’t find one. United States v. Watson, 2021 U.S. App. LEXIS 8564 n.3 (6th Cir. Mar. 22, 2021). Remanded a second … Continue reading

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CA5: District court’s failure to credit def’s claim of possessory interest in car is affirmed

Defendant was a passenger in a car in which he claimed he had a possessory interest because it belonged to his domestic partner and he claimed to have paid $2000 toward the car. The district court didn’t credit that testimony … Continue reading

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LA1: Failure to include SW materials in record requires affirmance

Failure to include all the search warrant materials in the appellate record requires affirmance of that sole issue on appeal. “Relator failed to include copies of documents that would assist with addressing his complaint including the motion to suppress, the … Continue reading

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FL1: Screen shot of of meth on a scale on driver’s cell phone permitted dog sniff during writing of traffic ticket

Defendant was stopped for a traffic offense, and he was unusually nervous. Sitting on his left leg was a cell phone with the screen on showing a picture of meth on a scale. That justified a dog sniff while a … Continue reading

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D.Kan.: Pro se motion to suppress of represented def doesn’t attach affidavits, say why 4A or statute violated, or cite any law; denied for having counsel

Defendant is represented by counsel, then files a motion to suppress. “Defendant’s pro se motion reflects a misunderstanding of court proceedings. The Defendant fails to specify which search warrant he objects to, fails to provide a copy, or copies, of … Continue reading

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CA10: De novo review overcomes a “skewed” finding of district court

Applying the Ornelas de novo review standard, the court reassesses the evidence and finds reasonable suspicion for the detention. The district court’s view of the evidence of reasonable suspicion was heavily skewed toward the government’s proof. Still, there is reasonable … Continue reading

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NE: Three day old information vehicle was involved in a shooting was RS

There was reasonable suspicion for the stop of defendant’s vehicle on a three day old report of it being involved in a shooting. On appeal from a denial of a motion to suppress, the evidence from both the suppression hearing … Continue reading

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CA11: Furtive gesture of hiding a cigarette pack was RS

The furtive gesture of hiding a cigarette pack during a traffic stop was reasonable suspicion (along with a few other reasons, but this is more important). United States v. Williams, 2021 U.S. App. LEXIS 3123 (11th Cir. Feb. 4, 2021). … Continue reading

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S.D.Tex.: Where no GFE on first suppression inquiry, no PC here either

This was “not a real good warrant.” This court evaluates good faith first, probable cause second. [As you will see, the nature of that inquiry sets up the second answer. If the good faith exception applies, PC is close enough; … Continue reading

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AR: Reasonableness of a probation search has to be presented to revocation court first

Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021). Defendant was on release and … Continue reading

Posted in Automobile exception, Burden of pleading, Burden of proof, Probation / Parole search, Standards of review | Comments Off on AR: Reasonableness of a probation search has to be presented to revocation court first

OR: Outstanding warrant on passenger alone doesn’t justify frisk of driver

The fact the passenger had an outstanding warrant didn’t show reasonable suspicion for a frisk of the driver for officer safety. State v. Goguen, 308 Ore. App. 706, 2021 Ore. App. LEXIS 75 (Jan. 27, 2021).* “We agree with the … Continue reading

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